Area campuses are playing a wait-and-see game as the comment period continues for proposed changes to federal regulations regarding sexual misconduct on college campuses.
U.S. Education Secretary Betsy Devos introduced the proposed regulation changes in November that would bolster protections for students accused of sexual misconduct.
The changes, which were outlined in a 149-page document, would establish a narrower definition of sexual assault and harassment from the current "unwelcome conduct," up to "severe, pervasive and objectively offensive." It would be up to schools to decide what conduct meets those standard.
The North Dakota State Board of Higher Education discussed the revisions during its latest meeting on Dec. 6.
In addition to changing the definition of sexual assault, the revisions would also include allowing universities to only investigate sexual assaults or harassment that happens on campus or incidents that occur within campus-sanctioned events or activities.
Eric Olson, attorney for the SBHE, said the rules include a "significant gray area" regarding off-campus incidents that are not directly tied to the school's educational activities or programs, such as an off-campus party.
The proposed changes to Title IX also include "mandatory" provisions schools would be expected to carry out, including holding live hearings and allowing for cross-examination in them. The changes would also require universities to provide a lawyer to a student if the other student involved already has one.
Olson said these requirements could be difficult, especially in North Dakota where there is a "lack" of Title IX trained attorneys. He said while the time commitment for the training is not overly significant, the cost for the training is rather expensive.
The proposed regulations could have a more significant effect on smaller campuses that may not have an entire department or team dealing with Title IX violations, Chris Pieske, who serves as attorney for seven of the smaller campuses in the university system, said.
Larry Skogen, president of Bismarck State College, said it has taken the university system a long time to get to where the current regulations are with Title IX.
"This is a huge change," Skogen said. "My view is, just like with all of the stuff that comes out of Washington, D.C., the rural states are going to get hit hardest with this stuff. If we were Cal State System ... we'd have a lot more flexibility to do this stuff, but this is going to be a very, very heavy lift."
Donna Smith, Title IX coordinator at UND, said overall the process for dealing with a Title IX report or complaint will not change too dramatically if the rules are passed.
UND already conducts live hearings involving the accuser and the accused, as well as a hearing panel. The school also allows for cross-examination, which goes through the chairperson of the hearing panel. After hearing from both sides and any witnesses, the hearing panel will make a determination as to whether the accused person is responsible for a policy violation. If the person was determined to violate a policy the issue would then move into the sanction phase.
The biggest change for UND would be that the number of "required reporters" would decrease.
In fiscal year 2018, UND received and investigated 16 complaints against students for potential sexual misconduct policy violations, Smith said. Sexual misconduct includes sexual harassment or discrimination, sexual assault, domestic violence, dating violence, stalking and retaliation.
Smith said the university has "no plans" to change its policies that "already exceed the baseline we are required to meet for Title IX compliance."
"The Title IX rules are a floor, not a ceiling, for how we respond to reports and complaints of sexual misconduct," Smith said. "UND's goal is to provide due process and equitable supports for all students involved."
She added that the university will continue to monitor this process as it moves forward.
Ashley Zarling, a Williston State student who serves on the SBHE, said it is important for universities to keep students in mind going forward.
"As much as it's going to put weight on the campus, at the end of the day there are students that feel very well represented in the current system and then there are students that are feeling very overwhelmed by the current system," she said.
Zarling encouraged university presidents to talk with their students about the issue.
John Hoffman, vice chancellor at the University of Minnesota-Crookston, said something that gets lost in the conversation around Title IX is education and prevention surrounding sexual assault/harassment.
Hoffman said it's important to educate students about what good, healthy relationships look like.
"Here in northwest Minnesota and North Dakota I know a lot of times it's kind of hard for folks to talk about sex but we need to be talking with students about 'What does (a healthy relationship) look like to you?' " he said, noting that the answer to that question is different for everyone.
Hoffman added that as students' brains develop, the influence of movies and television isn't always the best guide.
"It's something I feel we do well and something we will continue to do regardless of what happens with the policy," he said.
Laura Frisch, director of advocacy and empowerment for the Community Violence Intervention Center in Grand Forks, said any time there is a chance that something could hinder a person from coming forward about alleged sexual assault or harassment, it's important to consider what that could mean for reporting going forward.
"There's already a pretty scary mountain in front of them when it comes to telling their story and coming forward with making a report, so I think it's so important to keep sensitivity and realizing how challenging that can be for someone who's been through a really traumatic event," she said.
Cynthia Garrett, co-president of Families Advocating for Campus Equality, said her organization supports the proposed changes to Title IX.
"They are what we feel is necessary to make the process fair," she said.
FACE, a support group for the accused, was started, in part, by a mother of a UND student, Caleb Warner, who was accused of sexual assault in 2010. Although he was never charged with a crime, he was banned from the UND campus for three years.
Warner's accuser was later charged with falsifying a report to law enforcement, and UND's sanctions against Warner were eventually lifted.
Garrett said while some campuses are already doing fine at handling sexual assault/harassment claims, others are not.
Garrett said "minor" incidents of sexual misconduct that do not involve sex should not be a suspendable or expulsion offense, unless that conduct is ongoing or rises to the level of rape or a power differential.
Garrett also pointed out that universities can still have guidelines with how to handle those "minor" incidents, they just won't be required to investigate them under the new rules.
The 60-day comment period ends Jan. 28.
The SBHE said it will continue to weigh its options with how North Dakota campuses can submit comments.
Hoffman said the University of Minnesota System will likely be submitting some sort of comment that would likely work in from each satellite campus.
If the proposed changes are adopted, the new rules would not go into effect until 2020. However, SBHE attorney Olson said a lawsuit would likely follow shortly after, which would delay the implementation process further.